For noncitizens that are charged with a crime, one should always
consider not only the criminal consequences involved, but also the
immigration consequences. For some, they are going to care much more
about the possible criminal penalties than any immigration consequences.
But for others desperate to remain in the U.S., they would sacrifice
almost any other consideration in order to avoid removal.
General Crimes that can cause deportation of Non-Citizen
- Such crimes of moral turpitude committed within five years after the date of admission for which a sentence of one year or longer may be imposed;
- Multiple criminal convictions committed at any time after the admission;
- Aggravated felony as defined in INA Section 101(a)(43) committed at any time after admission;
- High Speed Flight in violation of section 758 of title 18, U.S.C;
- Failure to register as a sex offender.
Control Substances related offenses that can cause deportation of Non-Citizen
Any alien who at any time after admission has been
convicted of a violation of any law relating to a controlled substance, other than a single
offense involving possession for one's own use of 30 grams or less of
marijuana, is deportable. Further, any alien who is drug abuser or addict is deportable.
Aliens who at any time after admission were convicted of a crime of domestic violence, or violated firearms offenses, trafficking laws, or committed offenses against the US such as espionage, sabotage, treason, are deportable.
If they are in the latter category, there are many cases where it is
possible to identify a plea that is roughly equivalent to the one
charged but is safer for immigration purposes.
Irina Vinogradsky is an attorney who works in the area of criminal and immigration law. Contact her to discuss your case.
You can call at (216)292-6655 or e-mail irina@iv-law.com.
| Criminal Defense Counsel’s Duties in Representing an Immigrant Defendant
On March 31, 2010 the Supreme Court issued a momentous decision
regarding immigrants’ rights to counsel in Padilla v. Kentucky. The
Court held that the Sixth Amendment requires defense counsel to provide
affirmative, competent advice to a noncitizen defendant regarding the
immigration consequences of a guilty plea, and, absent such advice, a
noncitizen may raise a claim of ineffective assistance of counsel. The
standards put forth by the court provide that competent defense counsel
must take immigration consequences into account at all stages of the
legal process.
Some duties of defense counsel include:
- Duty to inquire about citizenship / immigration status at the initial interview stage.
- Duty to investigate and advise about immigration consequences of plea alternatives.
- Duty to investigate and advise about immigration consequences of sentencing alternatives.
The Supreme Court in Padilla urged criminal defense attorneys to be
“active, rather than passive, taking the initiative to learn about rules
in this area rather than waiting for questions from the defendant.” It
is of utmost importance when defending any client, you are aware of any
possible immigration consequences that may arise.
Federal Criminal Defense: Complying with Padilla v. Kentucky 130 S.Ct 1473 (2010) - Immigration Consequences.
"Changes to immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction."
"Because the drastic measure of deportation or removal is now virtually
inevitable for a vast number of noncitizens convicted of crimes, the
importance of accurate legal advice for noncitizens accused of crimes
has never been more important."
Immigration law can be complex, and it is a legal specialty of its own.
... When the law is not succinct and straightforward ... , a criminal
defense attorney need do no more than advise a noncitizen client that
pending criminal charges may carry a risk of adverse immigration
consequences. But when the deportation consequence is truly clear, as it
was in this case, the duty to give correct advice is equally clear."
|
